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SUMMARY OF TERMS OF EXCHANGEABLE NOTES
This document summarizes the material terms of the indenture governing the Exchangeable Notes (as defined below) (the “Indenture”). Because this document is a summary, it does not describe every aspect of the Indenture and the Exchangeable Notes, and it is subject to and qualified in its entirety by reference to all the provisions of the Indenture, including the definition of various terms used in the Indenture and the Exchangeable Notes. Capitalized terms used herein and not defined herein have the meanings assigned to such terms in the Indenture. In the event of any inconsistency between the terms of this summary and the terms of the Indenture, you should rely on the terms contained in the Indenture.
| Issuer: | OHIO ConvertCo S.à r.l. (“ConvertCo” or the “Issuer”). |
| Notes offered: | U.S. $410,817,090 aggregate principal amount of 0.500% Exchangeable Notes due 2043 (the “Exchangeable Notes”). |
| Issue Date: | June 7, 2023 (the “Issue Date”). |
| Exchange Property and Exchange Ratio: | The non-voting shares underlying the Exchangeable Notes are the non-voting series C shares (the “Non-Voting Shares”) of FORESEA HOLDING S.A. (formerly DrillCo Holding Lux S.A.), a Luxembourg public limited liability company (société anonyme or S.A.) existing under Luxembourg law, having its registered office at 8-10, avenue de la Gare, L-1610 Luxembourg, Grand Duchy of Luxembourg and registered with the Luxembourg Trade and Companies’ Register under number B275884 (“Foresea Holding”).
Upon the occurrence of any of the events described herein under “Exchange Events,” holders of Exchangeable Notes shall be entitled to receive their Pro Rata Share of the Exchange Property held by ConvertCo, based on the Exchange Ratio. Pursuant to the Indenture: “Business Day”, in any place, means a day (which is not a Saturday or Sunday) on which commercial banks are open for business in New York City (United States of America) and Luxembourg. “Exchange Agent” means The Bank of New York Mellon or any other Person authorized by the Issuer to exchange Exchangeable Notes in accordance with the Indenture. “Exchange Property” means, (i) the Non-Voting Shares owned or held by ConvertCo, as subsequently adjusted in accordance with the terms of the Indenture, and (ii) to the extent applicable, any other securities or other property, including cash (but only to the extent that there is Excess Cash), received by ConvertCo in exchange for or in respect of such Non-Voting Shares (as subsequently adjusted), and distributions pursuant to a reclassification, reorganization, merger or similar transaction by Foresea Holding. “Exchange Ratio” means, as of any Exercise Date, the ratio of (A) the aggregate principal amount of Exchangeable Notes to be exchanged as set forth in the relevant Exchange Notice provided pursuant to the Indenture to (B) the aggregate principal amount of all Exchangeable Notes (including the aggregate principal amount of the Exchangeable Notes to which the Exchange Ratio calculation relates) which are Outstanding on the relevant Exercise Date (excluding for this purpose the aggregate principal amount of any other Exchangeable Notes in respect of which the Exchange Right has been exercised by a Noteholder but as to which such other Exchangeable Notes’ Pro Rata Share of Exchange Property has not yet been delivered). “Exercise Date” means the Business Day on which an Exchange Notice has been deposited with an Exchange Agent in full compliance with the Indenture, which must also be a Business Day in the city where such Exchange Agent is located. “Pro Rata Share” means, with respect to the Exchange Property for which any Exchangeable Notes are exchangeable, the sum of the following, (i) in the case of Non-Voting Shares, the number of Non-Voting Shares, if any, into which such Exchangeable Notes may be exchanged, which shall be determined by (1) multiplying the Exchange Ratio by the total number of Non-Voting Shares then owned or held by ConvertCo and (2) rounding the resulting number down to the nearest whole number of Non-Voting Shares (provided that no fractional securities shall be delivered), and (ii) in the case of Exchange Property other than Non-Voting Shares, a portion of such other Exchange Property (excluding any Exchange Property which has not yet been delivered to the Issuer) that may be available from time to time, which portion shall be determined by multiplying the aggregate amount of such other available Exchange Property available (but excluding for this purpose the Pro Rata Share of Exchange Property in respect of any other Exchangeable Notes as to which the Exchange Right has been exercised by a Noteholder but such Pro Rata Share of Exchange Property has not yet been delivered) by the Exchange Ratio. |
| Maturity: | June 7, 2043 (the “Maturity Date”). |
| Interest: | 0.500% per annum, payable in cash to the extent ConvertCo has sufficient cash available (net of reasonably expected taxes and expenses payable during the 12-month period thereafter) to make the relevant interest payment in full; provided that, any amount of interest that is not paid on any Interest Payment Date shall be paid in kind (the “PIK Interest”) by increasing the outstanding principal amount of Exchangeable Notes on each Interest Payment Date (the “PIK Notes”). |
| Interest payment dates: | Interest on the Exchangeable Notes is payable on June 7 and December 7 of each year (each an “Interest Payment Date”), beginning on December 7, 2023. |
| Redemption: | Early Excess Cash Redemption: Subject to the thresholds, terms and conditions set forth in the Indenture, any Excess Cash determined to be held by ConvertCo shall be used to redeem Exchangeable Notes. “Excess Cash” shall mean any cash in excess of the amounts required for the payment of (i) interest on the Exchangeable Notes on the next succeeding Interest Payment Date and (ii) reasonably expected taxes and expenses payable during the succeeding 12-month period, including taxes and expenses payable in connection with a redemption.
Redemption at Maturity: Subject to the provisions of the Indenture, and unless previously redeemed or exchanged or purchased and cancelled, the Issuer shall redeem the Exchangeable Notes at their Final Redemption Amount on the Maturity Date by exchanging all of the Outstanding Exchangeable Notes into the corresponding Pro Rata Share of Exchange Property. |
| Status: | Direct, unsubordinated, unconditional and unsecured obligations of ConvertCo. |
| Exchange Events: | Optional Exchange: At any time during the Exchange Period referred to below, each Noteholder shall have the right (the “Optional Exchange Right”), subject to the provisions set forth in the Indenture and to maintaining the minimum denominations of the Exchangeable Notes as set forth in the Indenture, to exchange their Exchangeable Notes (or any portion thereof being at least $100,000 in principal amount and integral multiples of $1.00 in excess thereof) into its Pro Rata Share of Exchange Property. The “Exchange Period” shall begin on the date that is 40 days after the Issue Date and end at the close of business on May 22, 2043.
Mandatory Exchange: Upon the occurrence of any of the following events (each a “Mandatory Exchange Event”), in each case as determined by the Board of Directors of Foresea Holding and upon notice thereof to ConvertCo, the Exchange Right of Noteholders shall cease to be exercisable, all of the Outstanding Exchangeable Notes shall be exchanged into the corresponding Pro Rata Share of Exchange Property (a “Mandatory Exchange”) and will forthwith be cancelled: 1. a Change of Control; 2. Foresea Holding conducts any public offering for distribution of its shares in an organized market; 3. the aggregate principal amount of Outstanding Exchangeable Notes that have not been exchanged shall be less than 5% of the aggregate principal of Exchangeable Notes offered on the Issue Date; or 4. an Event of Default results in the declaration of a Mandatory Exchange Event. |
| Exchange Procedures: | Optional Exchange: To exercise the Optional Exchange Right attaching to any Exchangeable Note, the Noteholder must complete, execute and deliver, at such Noteholder’s or beneficial owner’s own expense, between 10:00 a.m. and 4:00 p.m. on any Business Day electronically to any Exchange Agent appointed pursuant to the terms hereof, an Exchange Notice substantially in the form attached to the Indenture, duly completed and signed.
Mandatory Exchange: Promptly following the occurrence of a Mandatory Exchange Event, the Issuer shall deliver electronically, between 10:00 a.m. and 4:00 p.m. on a Business Day, an Exchange Notice to the Noteholders, the Trustee and the Exchange Agent. A Mandatory Exchange Notice once given shall be irrevocable and may not be withdrawn by the Issuer. Delivery of Exchange Property: The Issuer shall, according to the request made by the relevant Exchange Notice, as soon as possible, but in any event on a date (in each case a “Settlement Date”) not later than ten Luxembourg Business Days after the Exercise Date, cause the relevant Exchange Property to be transferred to each exchanging Noteholder. With effect from the Business Day on which an Exchange Notice is duly delivered pursuant to the Indenture, as between the Issuer and the exchanging Noteholder, the Issuer will deem the exchanging Noteholder to have become the holder of record of the number of Non-Voting Shares and the amount of other Exchange Property, as applicable, to be delivered on such exchange and to no longer be a holder of the Exchangeable Notes to which such Exchange Notice relates; provided, however that the Noteholder will not be entitled to any interest on the portion of the Exchange Property consisting of cash or any cash proceeds of the Exchange Property. The Issuer shall pay such Exchange Property comprising cash (converted (if necessary) into Dollars at the Applicable Exchange Rate as of the Settlement Date) in accordance with the directions given to the relevant Exchange Agent by the Noteholder as provided above. The Notes, the Exchange Right of which has been duly exercised and discharged, shall be cancelled by removal of the Noteholder’s name from the Note Register on the relevant Exercise Date with respect to the Exchange Property delivered. |
| Governing Law: | The Exchangeable Notes shall be governed by and construed in accordance with the laws of the State of New York, without regard to conflict of laws principles. |
| Trustee and Exchange Agent Contact Information: | The Bank of New York Mellon
240 Greenwich Street 7th floor East New York, NY 10286 Attention: Global Client Services, Cross Border Structured Facsimile: +1 724.540.6315 or +1 615.779.7515 Telephone: +1 973-357-7811 E-mail: structured-latam@bnymellon.com With a copy to: The Bank of New York Mellon 385 Rifle Camp Road, 3rd Floor Woodland Park, NJ 07424 |
| Copy of Indenture: | Upon written request, the Issuer can provide any Holder with a copy of the Indenture.
Requests may be made to: OHIO ConvertCo S.à r.l. 8-10, Avenue de la Gare, L-1610 Luxembourg Telephone No.: +352 26 186 1 Email: OhioConvertCo@centralis.lu Attention: Sole Manager With a copy to: |